Overruled: PW Talks to ARL’s Brandon Butler: ALA Preview 2013

By Andrew Richard Albanese
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Nov 30, 2012

Sure, for the general observer, 2012 might well be remembered as a year of frustration for libraries, dominated by the lingering impasse over e-book lending. In reality, 2012 could go down as one of the most important years ever for libraries, thanks to a string of legal victories and an emerging legislative coalition.

Through the Library Copyright Alliance, a coalition of three major library associations—the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries—librarians and their advocates have worked hard to represent the interests of more than 300,000 information professionals—and the public they serve. How is the library community feeling about 2012—and what’s on the horizon for 2013? PW caught up with Brandon Butler, director of public policy initiatives, for the Association of Research Libraries.

When 2012 began, libraries were feeling embattled in the legal realm, facing numerous lawsuits. Yet the year ends with some very big victories, in the HathiTrust and Georgia State cases, for example. Are some long simmering questions about library practices and fair use—fights long avoided—now on the verge of being settled law?

At the beginning of the year things did look dark in the sense that it was possible things could go the wrong way, and it was very hard to know for sure the probability of things going badly. But the upshot is exactly as you describe it: positive outcomes in these cases are building a stronger foundation for library fair use, and that foundation will only get stronger as the decisions are affirmed by circuit courts, as I think they will be.

In terms of fair use, case law has been moving in the right direction for more than a decade, for example, favoring transformative uses by companies like Google, whose use of thumbnails and snippets for Web search has been found fair use, and publishers like Dorling Kindersley, whose reproduction of Grateful Dead posters in a coffee-table book was also found to be fair use. So, there was always reason for optimism. But libraries and their parent institutions had generally not been sued over fair uses, largely because it seemed likely at first glance that they would win, and yet because they had never been sued, they had never won the kind of decisive victory that would firmly establish the legality of their activities.

And do you believe you have those kind of decisive victories now, even with the pending appeals?

The opinions, especially the HathiTrust opinion, are very robust, and I’m pretty confident that they’ll be upheld. Indeed, I’m hopeful that the 11th Circuit might actually see fit to improve upon Judge Evans’s opinion in the GSU case, which created some arbitrary limitations on e-reserves—for example, the 10% or one chapter rule—that may not stand up to scrutiny. I can understand why the plaintiffs in both of these cases are appealing. Given their inflated sense of the “danger” of library fair use, they see these as cases they cannot afford to lose. But once they get to the appellate level, they’re really playing with fire in terms of getting precedent-setting decisions they don’t like. They might possibly have written off opinions of one or two federal district judges, but when the circuit courts start piling on, the legitimacy of library uses will be hard to deny.

The Kirtsaeng v. Wiley case, regarding first sale, is still outstanding. What’s your impression—is the Kirtsaeng case important for libraries, or, as publishers have argued, are the threats really just extravagant hypotheticals?

I think the case is extremely important in that it highlights a genuine tension in the Copyright Act between the first sale doctrine and the ban on gray market importation. That tension is really there, in the text, and I don’t think the Supreme Court will be able to resolve it once and for all. No matter who wins, we are all going to be [asking] Congress for a fix to clear up this mess.

One of the other major stories in 2012 was the epic fail of SOPA. What really struck me about that was the emergence of a new, call it a lobby, or a coalition—including librarians, tech companies, and public watchdog groups—now organized to balance the input from the entertainment industry. How might that change things in Washington going forward when it comes to copyright?

The meaning of the SOPA defeat is something that has been debated in the copyright and policy world ever since it happened. The lesson that I think members of Congress and their staff should take away from that fight is that they cannot continue to treat copyright policy as a one-sided question of how best to protect content industries from lawless piracy. SOPA showed that there are literally millions of stakeholders—not just libraries and tech companies, but more importantly, our users—with legitimate interests in how copyright law gets written. Those people and their interests in free expression and access to information must have a seat at the table, too.

Now, I don’t think everyone has necessarily learned that lesson. Instead, what we’ve seen reported is that some members of Congress and their staff are afraid of the power of Internet companies to manipulate and mobilize Internet users, whom rights-holders’ groups haven portrayed as dupes that never understood how perfectly good and harmless SOPA really was. So, yes, there’s certainly more power on the Hill for those of us representing users in coalitions with Google and the like. But for now that power seems to be tied mostly to our ability to mobilize users, rather than a real recognition of our legitimate interests.

On the legislative side, how are libraries positioned, and what looming challenges are you paying attention to? Even if all the legal victories of 2012 hold up on appeal, do you expect to see legislative efforts that seek to roll back those wins?

Yes, we are gearing up for a number of legislative discussions for the coming year. I don’t think anyone would be so bold as to go to Congress and say, “libraries are out of control. Let’s legislate specifically to take rights away from libraries that have been established in the courts.” But I think that in the legislative process, there will be opportunities to demand those kinds of limitations in the context of other discussions.

For example, the Copyright Office is planning to propose some sort of rewrite of Section 108, which is the part of the Copyright Act that deals specifically with libraries and archives. That’s been an area of discussion for years, but there is very little consensus about the best path forward. That would be a natural place for disgruntled plaintiffs to relitigate the GSU and HathiTrust decisions, asking Congress to change the law to rein in fair use rights and confine them to a limited universe of special exceptions. Obviously, we would resist any such efforts, and our prime directive in any discussion of Section 108 is “first, do no harm.” Yes, Section 108 is showing its age. But it is foundational and, when supplemented by fair use, perfectly adequate to suit library needs. So we aren’t keen to embark on a rewrite process that could well end up replacing one inflexible provision with another inflexible provision, compromising our fair use rights in the process.

Similarly, there is movement from the Copyright Office toward a new effort to legislate on orphan works and mass digitization. This is looking like a long haul, with a preliminary inquiry just out and comments due early [in 2013], to be followed by more roundtables and process over the coming months, and then, perhaps, to culminate in legislation. But we are leery of wasteful proposals like extended collective licensing, which would empower organizations like the CCC to demand payment for use of works whose owners cannot be identified or located. Jonathan Band has collected a fantastic portfolio of horror stories about collection societies from all around the world (Cautionary Tales About Collective Rights Organizations) and it’s food for thought for anyone who thinks it would be a good idea to try something like that with orphans or mass digitization.

Here, again, we are pretty confident that fair use and the courts are a better venue for libraries than specific exceptions and Congress. But, of course, we will be sure that our voices are heard in whatever process unfolds.

Onto a broader issue: reform. What did you think about Derek Khanna’s RSC report on copyright—and its immediate retraction? Do you think this kind of public attention bodes well for the prospect of genuine copyright reform for the digital age? Or do you think the report might be buried deep in a hole and forgotten with time?

I loved the report. I think Derek Khanna got everything basically right, and it would be an absolute political coup for the GOP to make a play for tech-savvy young voters by making copyright reform one of their issues. As with so many things, it comes down to whether [the GOP] wants to be pro-market or pro-business—the libertarians have long been allies with the library community on this issue. In fact, CATO is publishing a very interesting-looking collection of libertarian arguments for copyright reform called Copyright Unbalanced: From Incentive to Excess. I especially appreciated Khanna’s proposal to shorten the term of copyright and reintroduce renewal fees. That’s one area where the current law is just completely indefensible as anything other than a handout to large corporations with portfolios of ancient content.

Of course, the legacy content industries are very powerful, and they are working hard to reframe the narrative, but I do think time is on the side of reform. And I think the report is indicative of the future of political discourse around copyright. It presages a generational shift that may take a while to emerge, but it is, in my opinion, inevitable. Derek’s generation has encountered copyright primarily in negative contexts—as a tool of legacy corporations used to punish people and to constrain exciting new technologies. From the right, copyright looks an awful lot like government intrusion in the marketplace, and from the left it looks like an impediment to free speech and access to information. So I think we will see people on both sides of the political divide rally around this issue.

Do you think the court victories of 2012 might actually lead to a cooling-off period in what’s been a very litigious period? Is it possible that we might soon be able to go back to disagreeing in working groups and stop paying lawyers?

I hope these victories—and hopefully more victories on appeal—will help break the fever among some rights-holder groups regarding digital uses of books and other copyrighted works. I think time has shown that what libraries are doing in these cases is not disruptive to authors’ and publishers’ legitimate business—that’s why we’re winning all these fair use cases. No one is suggesting that libraries should or would ever stop buying books or licensing access to journals. We spend millions of dollars every year doing just that. Making books searchable, text-minable, accessible to our print-disabled users, these are library services that supplement and enhance the value of our lawfully obtained collections, and create enormous scholarly and cultural opportunities in the process. Some publishers and authors may imagine a world where they get paid for anything that involves a book, even after it’s sold, and in the digital world it may even be feasible to collaborate with licensing middlemen to make that a reality. But that vision of ubiquitous digital control and monetization would be a nightmare scenario that copyright was never meant to create, and that fair use exists to prevent.

On the flip side, with the courts clearly tilting in libraries’ favor in 2012, has there been any talk about maybe going on offense? The e-book issue comes to mind as a prime example. As public institutions, libraries are not litigious and they rarely go looking for fights—but is it possible that a lawsuit might be just the kind of action needed to break the e-book impasse?

I don’t see libraries going on offense in terms of a litigation campaign, although the e-book situation is so critical for public libraries that I don’t know that I’d rule anything out. In terms of legislation, however, we are definitely going on the offensive on first sale. Meetings are already under way in congressional offices, and we have a great set of allies in the Owners’ Rights Initiative, so we’re confident that we’ll get something good there. And who knows, perhaps a good outcome there will help us do more good things in the future.

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